Visitor1. What types of visas are available for people to come to the United States? Top

Nonimmigrant visas are for international travelers, (citizens of other countries), coming to the U.S. temporarily. This visa allows you to travel to a U.S. port-of-entry (airport, for example) and request permission of the Department of Homeland Security immigration inspector to enter the U.S. A visa does not guarantee entry into the United States.

International travelers come to the U.S. for a wide variety of reasons, including tourism, business, medical treatment and certain types of temporary work. The type of visa needed is defined by immigration law, and relates to the principal purpose of your travel.

2. How can I find out how long I am authorized to stay in the U.S.?Top

A visa does not guarantee entry into the United States, but allows a foreign citizen coming from abroad, to travel to the United States port-of entry and request permission to enter the United States. The Department of Homeland Security, United States Customs and Border Protection (CBP) officials have the authority to permit or deny admission to the United States, and determine how long a traveler may stay. At the port of entry, you will be provided with a small white card, Form I-94, Arrival-Departure Record. It is usually attached to your passport. Customs and Border Protection Officers record either a date or “D/S” (duration of status). If your I-94 contains a specific date, then that is the date by which you must leave the United States. Your Form I-94 is a very important document, since it shows you are allowed to be in the United States up to a specific date or for the duration of your status.

3. If the visa expires while an individual is in the United States. Top

Is there a problem with that? No. If the Department of Homeland Security, Customs and Border Protection Immigration Officer at the port of entry (generally an airport) admitted you into the United States for a specific period of time, s/he will note your authorized period of stay on your I-94 card, called an Arrival Departure Record. You will be able to remain in the United States during your authorized period of stay, even if your visa expires during the time you are in the United States. Since Form I-94 documents your authorized stay and is the official record of your permission to be in this country, it is very important to keep it inside your passport.

A wide variety of organizations and educational institutions may qualify to sponsor persons as exchange visitors on the J-1 visa. There are many different types of J-1 programs. These include: students, professors and research scholars, physicians, teachers, trainees, au pairs, and summer student workers. Persons with skills listed on the Exchange Visitors’ Skills list, and those participating in government-funded programs or graduate medical training must comply with a two-year, home-residency requirement before they are eligible to change status in the U.S. or obtain an H1B, L-1, or Permanent Resident status. Waivers of the two-year, home residency requirement are available in certain circumstances.

5. I am interested in flying to the U.S. from Bermuda for a visit. Top

Do I need a passport? Yes, a passport (or other document/s required by DHS) reflecting identity and citizenship is required for one’s admission into the United States. This requirement came into effect on January 23, 2007, under the Western Hemisphere Travel Initiative (WHTI). Under the WHTI, all persons traveling by air between the U.S. and Canada, Mexico, Central or South America, the Caribbean, or Bermuda need valid passports, Air NEXUS cards, or U.S. Coast Guard Merchant Mariner Documents.

6. I am in B-2 status in the U.S. If I am admitted to a school here and receive an I-20, would I be able to change to student status? Top

It is possible to apply to change status from tourist to student. Whether it is approved or not depends upon several factors, including how long one was here before applying for the change of status, what s/he told the consular officer at the time of application for the visitor visa, and whether s/he has adequate financial support to attend school. An additional factor that is sometimes raised by the USCIS, but more often by consulates, is whether you one has the ability to show an intention to return to the home country. As a practical matter, you should be aware that a change of status application can take several months (4-8 months at the time of this writing) and, although one may have been accepted into an academic program, s/he is not legally authorized to attend classes until the application has been approved.

7. Can an individual change B-2 status to H1B while in the United States? Top

A person in B-2 status is allowed to file an application with the USCIS to change status to H1B. However, even if the application for change of status from B-2 to H1B is approved by the USCIS, it may be difficult to obtain an H1B visa in the passport from a U.S. consulate abroad. A consular officer will deny the application for an H1B visa if s/he believes one has misrepresented him/herself upon entry to the United States. In fact, some consular posts in Canada and Mexico do not even accept such applications. Rather than file a change-of-status application from within the U.S., it is better to depart the U.S. and have one’s prospective employer file an H1B petition on one’s behalf. Once it is approved, one will be able to apply for an H1B visa at the U.S. consulate in her/his home country.

8. If an individual was recently denied a visitor visa under 214(b). Is he/she allowed to re-apply in a few months? Top

Generally, nothing prevents you from re-applying for a visitor visa shortly after a 214(b) refusal. However, you should be aware that consular officers are able to access detailed records of previous interviews, including the reasons for a denial, and may not look favorably upon re-applications within a short period of time. Therefore, unless you are able to show that your situation has changed since your last visit, or provide new and material evidence that was not previously considered, it is probably better for you to allow more time to pass before re-applying.

9. If an individual would like to enter the U.S. as a visitor under the Visa Waiver Program. Is there anything that he/she should be aware of before deciding to take advantage of the program?Top

Yes, one should consider a number of issues before entering the U.S. under the Visa Waiver Program (VWP). As you may know, the VWP allows travelers from certain countries to visit the U.S. for business or pleasure for a maximum of 90 days without a visa. While having the option to enter the U.S. without a visa greatly facilitates one’s ability to travel, a visitor entering the U.S. in WB (B-1) or WT (B-2) status should note that s/he is not eligible to change, extend, or adjust status in the U.S. In other words, s/he must first depart and reenter the country. The only exception is in the case of the adjustment of status of applicants who qualify as immediate relatives. A visitor entering the U.S. under the VWP must provide a machine-readable passport, evidence of a foreign residence to which s/he will return, and evidence of financial ties to the home country.

Student

1. What does an individual need in order to apply for an F-1 visa at a consulate? Top

To apply for an initial F-1 visa, a student needs to provide the consulate with a properly completed SEVIS Form I-20, which is issued by the school. In addition, s/he needs to show proof of having paid the SEVIS fee (Form I-901); evidence of financial ability to meet the required expenses as indicated on Form I-20; evidence of English ability sufficient for the intended course of study; evidence of intent to depart the U.S. after completion of studies; passport valid for at least six months after the date of the visa interview; Form DS-156 Nonimmigrant Visa Application; Form DS-157 (if applicable); Form DS-158; photographs (one should check with the U.S. consulate having jurisdiction over his/her place of residence on important guidelines and specifications for the required photographs); proof of payment of Machine Readable Visa (MRV) fee; and visa reciprocity fee (if applicable). Applicants should also be prepared to provide proof of transcripts from previous institutions attended; scores from standardized tests required by the educational institutions such as TOEFL, SAT, GRE, GMAT, etc.

One of the most important requirements for an F-1 visa is proof of nonimmigrant intent. Therefore, it is extremely important to document strong ties to one’s home country and intent to return once the degree is completed. The appropriate documentation will vary from consulate to consulate, but the following are all helpful: proof of job offer upon one’s return or plans to join a family business, family and community ties, and an explanation of how the particular skills / knowledge gained in the U.S. are needed or marketable in the home country. Review the most recent information about F-1s on the appropriate U.S. consulate’s website.

The Student and Exchange Visitor Information System (SEVIS) Form I-20 is an official DHS document that contains information about the school, the degree one intends to pursue, the timeframe in which the degree will be attained, and one’s financial obligations. It also includes a bar code used to access the student’s information within the SEVIS electronic database.

It is important to understand that the I-20 is only a “certificate of eligibility” for F-1 status. Form I-20 alone is not an indication of student status. After an I-20 is issued, the student must either apply for an F-1 visa at a U.S. consulate or embassy outside of the U.S. (with the exception of Canadian citizens or nationals who are exempt from the visa requirement) or use it to change status from one nonimmigrant status to F-1 from within the U.S. by applying to the USCIS.

3. How does an individual change a status from tourist (B-2) to student (F-1)?Top

An individual who has not decided which school to attend in the U.S. may be granted a B-2 visa marked “prospective student” to allow entry to research and apply to schools. After the student is accepted to a school, the B-2 status can be changed to F-1. However, an individual who enters the United States on a B-2 visa may not enroll and begin classes until after the change of status has been approved.

If one is already in the U.S. and has a tourist (B-2) or business (B-1) visa, it may be possible to change the status to F-1 by applying to the USCIS for a change of status. As long as one is in the United States, the change of status is valid. However, if one leaves the U.S. for any reason it is necessary to apply for a new visa that corresponds to the new status. Talk to an experienced immigration attorney before applying for a change, because there are some important legal issues one should consider.

4. If a B-2 visitor is accepted for admission to a U.S. school and gets a SEVIS Form I-20, would s/he be able to change status to student?Top

It is possible to apply to change status from tourist to student. Whether it would be approved or not depends upon several factors, including how long one was in the U.S. before applying for the change of status, what was said to the consular officer when applying for the visitor’s visa in the first place, and whether there is adequate financial support for school. An additional factor that is sometimes raised by the USCIS, but more often by consulates, is whether or not one has shown an intent to return to the home country. An individual who enters on a B-2 visa may not enroll and begin classes unless and until the application for change of status has been approved.

Please note that, if one travels abroad after the change-of-status application is approved, it would be necessary to obtain the F-1 visa at a U.S. consulate. It can be difficult to get the visa after having changed status, since the consular officer would question why one did not obtain the F-1 visa originally, instead of entering the U.S. as a B-2 visitor.

5. What are employment opportunities for F-1 students? What is on-campus employment? Top

An F-1 student visa classification means that one’s primary reason for being in the U.S. is to study. However, the USCIS allows such a person to work in the U.S. if it is on-campus employment, off-campus pilot program employment, practical training, or specially authorized off-campus employment due to unforeseen economic hardship. The school’s Designated School Official (DSO) may be able to identify more sources of employment.

On-campus work opportunities depend on the type of school. Typically, these opportunities include working at a school cafeteria, dining hall, or snack bar, at the campus bookstore, library, computer lab, campus newspaper, or administrative office. Graduate-level students may be able to work as teaching assistants or research assistants. On-campus employment must not exceed 20 hours per week.

An F-1 student is automatically permitted to work on campus as long as s/he is otherwise maintaining his/her valid F-1 status. Generally, no specific employment authorization is required, although it is recommended that the F-1 student notify the DSO in the event that the school has an internal procedure for monitoring on-campus employment of international students.

A valid SEVIS I-20 certificate of eligibility and maintenance of a full-time course load are required for one’s legal status. An F-1 student must make normal progress towards completing the course of study, by completing studies before the expiration of the program completion date on Form I-20. In the event that this is not possible, one should contact the Designated School Official (DSO). There are some limited exceptions to the full-time requirement and the advisor can authorize a lighter course load in appropriate situations, such as in the case of an illness. It is necessary to obtain such authorization in order to maintain status. Additionally, one should ensure that the passport is valid for at least six months into the future, that s/he does not work off-campus without proper authorization, and that s/he applies for an extension of stay if it is found that s/he cannot graduate in the time indicated on the I-20 certificate of eligibility. An international student is required to notify the DSO of a change of address within ten days, and should also notify the DSO if s/he intends to withdraw from school or transfer to a different school.

7. Is it possible to change H1B to student status and get F-1 visa at the U.S. consulate in Mexico or Canada? Is there a chance of denial? Top

Assuming one has been working in the U.S. legally, s/he can apply either for a change of status to F-1 while in the U.S. or apply for the F-1 visa from outside of the U.S. to reenter. It is necessary for the college first to issue a SEVIS Form I-20. It generally is more difficult for an applicant to obtain a visa when applying for it in a country that is not his/her home country. Consular officers in other countries may be unable to properly assess and/or evaluate the foreign documents presented by a visa applicant visiting in the third country. In such cases, the consular officers may deny the visa application and recommend that the applicant return to his or her home country. Should this occur, one would be unable to reenter the U.S. without a valid visa stamp (that has not been revoked) and would have to travel directly from the third country to the home country for visa processing. An F-1 applicant, like one applying for a tourist visa, is required to show strong ties to his or her home country.

8. I am working in H1B status and want to change my status to F-1. If the F-1 is denied, can I still use the H1B? Top

Please note that it is possible to file for a change of status from H1B to F-1 within the U.S. The visa is the travel document that is requested at the consulate abroad. Status changes can potentially be obtained from within the U.S. It is generally not as difficult to obtain a change of status from H1B to F-1 from the USCIS (within the U.S.). It can be much more difficult to obtain an F-1 visa stamp abroad at a U.S. consulate in one’s home country, since the consulates tend to be more strict regarding the F-1 requirement of showing of temporary intent to remain in the U.S.

If the USCIS denies the change of status, then one would still be in H1B status, assuming s/he maintained that status by continuing to work for the employer under the terms of the approved H1B. If an F-1 visa is denied at a U.S. consulate abroad and one has not violated the terms of his or her H1B status, it may be possible to reenter the U.S. in H1B status with an H1B visa to resume employment. For this, the H1B job must still exist, the approved petition must remain valid, and the visa stamp must not have been cancelled.

Business person. Temporary employee.

1. What types of visas are available for people to work in the United States? Top

The Immigration and Nationality Act provides several categories of nonimmigrant visas for a person who wishes to work temporarily in the United States. If you want to work in the U.S. temporarily, under immigration law, you need a specific visa based on the purpose of your travel and type of work you will be doing. Here is a short overview of visa types that an individual can obtain in order to be employed in the United States.

H-1B classification applies to persons in a specialty occupation which requires the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education.

H-1C classification applies to foreign nurses coming to perform nursing services in medically underserved areas for a temporary period up to three years.

H-2B classification applies to temporary or seasonal nonagricultural workers. This classification requires a temporary labor certification issued by the Secretary of Labor (66,000);

H-3 classification applies to trainees other than medical or academic. This classification also applies to practical training in the education of handicapped children (50);

L classification applies to intracompany transferees who, within the three preceding years, have been employed abroad continuously for one year, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. in a managerial, executive, or specialized knowledge capacity;

O-1 classification applies to persons who have extraordinary ability in the sciences, arts, education, business, or athletics, or extraordinary achievements in the motion picture and television field;

O-2 classification applies to persons accompanying an O-1 alien to assist in an artistic or athletic performance for a specific event or performance;

P-1 classification applies to individual or team athletes, or members of an entertainment group that are internationally recognized (25,000);

P-2 classification applies to artists or entertainers who will perform under a reciprocal exchange program;

P-3 classification applies to artists or entertainers who perform under a program that is culturally unique (same as P-1); and

Q-1 classification applies to participants in an international cultural exchange program for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the alien’s home country.

In order to qualify for H1B status, one must have a job offer from a U.S. employer offering a salary commensurate with the higher of the prevailing or actual wage rate for persons in that occupation and geographic location. One must also possess the minimum of a bachelor’s degree (which should be considered equivalent to a degree from an accredited college or university in the U.S.), or equivalent in the specialty occupation. The job offered must be a specialty occupation, requiring a bachelor’s degree or equivalent at a minimum and the theoretical and practical application of a body of specialized knowledge. A few examples of positions considered professional in this category are: accountants, computer programmers, dietitians, graphic designers, journalists, researchers, and scientists. The employer must file the necessary petition.

The H1B cap is an annual limitation on the number of new visas available for H1B workers. The cap is currently set (by Congress) at 65,000. However, only 58,500 generally are available, as some numbers are set aside specifically for programs for nationals of Chile and Singapore. This does not include the 20,000 additional visa numbers available to persons who have earned masters’ or higher degrees from U.S. institutions of higher education.

H-1B visas are specific to the employer and the specific job for the employer. Should you desire to work at an additional job, you must apply for another visa. You must have a separate visa for each job. It is permissible to have more then one H visa at a time.

5. Can an individual begin working for his new employer once he has filed the H1B petition?Top

It depends. If one is currently in H1B status with another company, then s/he may be legally allowed to start working for the new employer upon filing the H1B petition. Otherwise, one generally must await an approval of the H1B petition and a change of status. It is important to verify one’s eligibility to commence employment with the new employer to avoid unauthorized unemployment, which may lead to problems later, when attempting to adjust status to lawful permanent resident (LPR).

Prior to the law signed on October 17, 2000, referred to as the American Competitiveness in the Twenty-First Century Act (AC21), Legacy INS consistently took the position that a person could not start working for the new employer until approval of the H1B petition. Status issues can be complicated and, if there is any question as to whether or not one is authorized to engage in H1B employment, s/he should consult with an experienced immigration attorney.

The process for filing an H1B “transfer” petition is the same as the process for filing a new H1B petition, since each H1B petition is employer specific. Therefore, it generally takes the same amount of time to process the H1B petition.

The main difference between an H1B “transfer” and a new H1B petition is that one who already holds an H1B status is generally not subject to the H1B cap and does not need to wait until October 1st to start working, if the H1B quota has been used up for that fiscal year.

7. Can an individual being employed in the United States, bring a family with him?Top

Temporary employment visas allow employee’s spouse and children to accompany him/her in the United States.

If it is, in fact, just the visa in one’s passport that has expired and not the H1B status, itself, then there is no need for concern. The visa is a travel document only. If the visa in one’s passport expires, one would need to apply for another visa at a U.S. consulate abroad the next time s/he travels outside the United States.

Generally, one’s legal status in the U.S. depends upon the expiration date on the I-94 card, written by the immigration officer at the port of entry. As long as the latest I-94 card (either a small white card typically stapled in the passport or an updated one located at the bottom of the latest approval notice) is currently valid, and one is continuing to work for the sponsoring employer under the terms of the petition, then s/he is legally permitted to be in the U.S., whether or not the visa in the passport has expired. If it is, in fact, the status (as indicated on the I-94) that has expired, one should contact an attorney immediately to discuss available options.

<strong>9. If an H1B has been approved, does it allow to work in any state in the U.S.?Top

The USCIS has taken the position that a person is only authorized to work in those cities / metropolitan areas listed on the Labor Condition Application (LCA) certified with the U.S. Department of Labor (DOL), and filed with the H1B petition. Generally, there must be a certified LCA for each location at which one will work, attesting that the employer will comply with the prevailing wage requirement for that local area. It is best to consult with an experienced immigration attorney prior to working at a location not previously certified.

10. If an individual is in F-1 status and have a practical training work permit terminated, does he has to stop working until the H1B approval comes through?Top

Yes. One must stop working upon the expiration of the EAD or the OPT. If an H1B petition requesting a change of status is filed prior to the expiration of the F-1 status (date of completing school or of finishing practical training, plus a 60-day grace period), one may legally remain in the U.S. However, one cannot work for the H1B-sponsoring employer during the period between the expiration of the practical training authorization and the start date on the H1B approval notice.

11. Can a person in H-4 status be allowed to work in the United States?Top

No. H-4 is a non-working status. In order to be legally authorized to work in the U.S., one who is in H-4 status must have an employer file an H1B petition or petition for another working status (other working category). The petition must request a change of status specifically.

12. Why it is necessary to check “no” for the requirements being normal for the occupation, when the requirements are normal for the company?Top

The DOL classifies all jobs and assigns them a job zone, indicating the maximum allowable educational requirement and experience requirement. If the minimum education and experience listed on the ETA 9089 form exceed the Specific Vocational Preparation (SVP) assigned to that Job Zone, then the DOL has stated that those requirements are not “normal” for the occupation and the employer must so indicate on the ETA 9089 Form where asked.

13. Will the case be denied if job requirements exceed the Job Zone?Top

If the education and experience in a particular case exceed the job zone assigned by the DOL, the case may only proceed if the company can demonstrate business necessity for the additional requirements. Business necessity is clearly established where the requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner.

14. Is it possible for an individual being in H1B status to start his/her own company?Top

Generally, the answer is yes. However, for immigration purposes the employer / employee relationship must be present and this often may be difficult to establish in a closely-held, corporate entity. Other legal issues, as well as many practical business matters, may create obstacles, as well.

15. What are the requirements for the Outstanding Researcher / Professor category? Top

Generally, there is a need to demonstrate that the professor or researcher is recognized internationally in a specific academic area through specific types of documentation. The individual must have at least three years’ experience in teaching and/or research in the academic area.

Such individuals must be sponsored either (1) for a tenured or tenure-track position within a university / institution of higher education, or (2) in a comparable university / academic research position or (3) in a private company in a comparable position. Private employer sponsors must have documented research results and employ at least three full-time researchers.

IMMIGRANT VISA Permanent residency

1. How can I become a legal permanent resident or green card holder?Top

To become a legal permanent resident (or green card holder), you must first be admitted as an immigrant. The most common methods for obtaining an immigrant visa are: 1) through family relationship with a U.S. citizen or legal permanent resident, or 2) through employment.

A person may become a U.S. citizen (1) by birth or (2) through naturalization. Naturalization is the way immigrants become citizens of the United States. In most cases, you must be an immigrant (permanent resident) with continuous residence in the U.S. for a number of years before you may apply for naturalization. If you were born in the United States (including, in most cases, Puerto Rico, Guam, and the U.S. Virgin Islands), you are a U.S. citizen at birth (unless you were born to a foreign diplomat). Your birth certificate is proof of your citizenship. If you were born abroad to a U.S. citizen parent, you may also be a citizen at birth.

No. After the marriage takes place, your U.S. citizen spouse must contact U.S. Citizenship and Immigration Services to change your status to legal permanent resident. This information is given to you when you enter the U.S.

2. Can my spouse come to the U.S. to Live While the Visa Petition is Pending?Top

If you are a U.S. Citizen, once you file Form I-130, your spouse is eligible to apply for a nonimmigrant K-3 Visa. This will entitle him or her to come to the U.S. to live and work while the visa petition is pending. The Form to file for this benefit is Form I-129F. It is not necessary for your spouse to obtain a K-3 visa in order to come to the U.S. to live and work. Your spouse may wait abroad for immigrant visa processing. However, seeking a K-3 visa can be a method for him or her to come to the U.S. more quickly.

If you are a Lawful Permanent Resident (LPR) and you have filed Form I-130 for your spouse and/or minor children on or before 12/21/00, your spouse and/or children may be eligible for the V visa classification if more than three years have passed since the I-130 was filed.

3. What if I am Late in Applying to Remove the Conditions on Residence? Top

If you fail to properly file the Form I-751 (Petition to Remove the Conditions on Residence) within the 90-day period before your second anniversary as a conditional resident, your conditional resident status will automatically be terminated and the USCIS will order removal proceedings against you. You will receive a notice from the USCIS telling you that you have failed to remove the conditions, and you will also receive a Notice to Appear at a hearing. At the hearing you may review and rebut the evidence against you. You are responsible for proving that you complied with the requirements (the USCIS is not responsible for proving that you did not comply with the requirements).

The Form I-751 can be filed after the 90-day period if you can prove in writing to the director of the Service Center that there was good cause for failing to file the petition on time. The director has the discretion to approve the petition and restore your permanent resident status.

If you and your spouse are unable to apply to remove the conditions on your residence because of divorce or annulment proceedings, you may not apply for a waiver of the requirement to file a joint petition, based on the “good faith” exception. You may not file for the waiver until after your marriage has been terminated.

An “Aging Out” case is a situation referring to a person’s petition to become a permanent legal resident as a “child” (for definition please see child as defined in the Immigration and Nationality Act), and in the time that passes during the processing of the application, the “child” turns 21, and “Ages Out.” If you are a United States Citizen petitioning on behalf of your child, yes, the CSPA prevents your child from “Aging Out.” If you are a Legal Permanent Resident petitioning on behalf of your child, a formula for timing is clarified in the September 20, 2002, CSPA memo for you to review.

Employers can sponsor employees or potential employees for lawful permanent residence through a process called labor certification. The process typically involves testing the local labor market for qualified U.S. workers who may be looking for such a position. If no qualified applicants are found, the employer submits the application to the Labor Department then files a petition with the Department of Homeland Security to establish the ability to pay the wage offered in the labor certification. Once approved, the sponsored individual and his or her family are cleared to file applications for lawful permanent residence.

In order to become a lawful permanent resident, eligible investors must file a Form I-829, Petition by Entrepreneur to Remove Conditions. Form I-829 must be filed within 90 days before the second anniversary of an Alien Investor’s admission to the United States as a conditional resident.

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